McNeill v. . Hodges

11 S.E. 265, 105 N.C. 52

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Claek, J.:

“It is a well-settled rule,” say the Court in State v. Peebles, 67 N. C., 97, “ that exceptions to such reports must be made as a matter of right at the Court to which the report is made.” After that term, if judgment be not entered thereat, it is a matter of discretion with the Court to allow exceptions to be filed, and from the exercise of such discretion no appeal lies. This ruling is recognized and sustained in University v. Lassiter, 83 N. C., 38; Commissioners v. Magnin, 85 N. C., 114; Long v. Logan, 86 N. C., 535.

The January Term of Cumberland Superior Court, to which the referee’s report was returned, was a regular term to which process was returnable, and differed from other terms only in that civil causes requiring a jury could not be tried thereat, except by consent of parties. Acts 1887, ch. 37. The report was properly filed at said term. It seems, from the statement of the case; that the defendant’s counsel knew that the report had been filed before the January Term began. They should have filed their exceptions at that term. The case had been a long time pending. It was begun in 1878. and was in this Court as far back as 83 N. C., 504 (1880). The attempted filing of exceptions in April was without authority of law, and it rested in the discretion of the Judge whether he should strike them out, as did also his refusal of the application to file exceptions at the May term.

The defendant moves, at this late day, to dismiss the proceedings in this Court, because the Probate Court, in which it originated, did hot have jurisdiction. The action is brought by wards against their guardian for an account, and the statute then in force (C. 0. P., 481), placed the jurisdiction in the Probate Court. Rowland v. Thompson, 65 N. C., 110. It is now transferred to the Clerk. The Code, §§102 and 1619.

The defendant also moves to reverse the judgment rendered in favor of his co-defendant, J. L. Smith, on the ground that there is nothing in the pleadings to support such judgment; and no prayer for relief in favor of J. L. Smith. The complaint specifies J. L. Smith as one of the wards entitled to an account, states why J. L. Smith is made party defendant, and asks that the account of the said guardian be stated as to each of the wards. There is no separate prayer for judgment by J. L. Smith, but no exception was made as to his being a party, and no denial of his being entitled to an account, and no objection was entered to stating the account as to him. He was a proper party. Southal v. Shields, 81 N. C., 28. The complaint alleges that J. L. Smith has not been settled with. This is not denied in the answer. Throughout the proceeding he is treated as having adopted the allegations of the complaint and its prayer for relief. Indeed, he was only in form a defendant, but in fact the statute authorizes such-judgment by one co-defendant against another. The Code, §424 (1); Hare v. Jernigan, 76 N. C., 471; Clark v. Williams, 70 N. C. 679; Hughes v. Boone, 81 N. C., 204. A cause of action having been stated as to J. L. Smith, he can have any relief to which the facts alleged and proven entitled him, though not demanded by a prayer for relief. Dunn v. Barnes, 73 N. C., 273; Knight v. Houghtalling, 85 N. C., 17; Jones v. Mial, 82 N. C., 252. It is too late, after judgment, especially since defendant acquiesced in treating the complaint as if it had been adopted by Smith, to object that there was no complaint filed by him. Robinson v. Hodges, at this term, and cases there cited.

Affirmed.